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Brooklyn Law School BrooklynWorks Faculty Scholarship Summer 2018 Lies, Deceit, and Bullshit in Law Lawrence Solan Follow this and additional works at: https://brooklynworks.brooklaw.edu/faculty Part of the Criminal Law Commons Lies, Deceit, and Bullshit in Law Lawrence M. Solan* I. INTRODUCTION ................................... 73 II. LYING .......................................... 76 A. What is a Lie? ...... ........... ... .. .... 76 B. Perjury........................... 78 C. Section 1001: Lying to a Government Official .......................... 90 III. DECEIT .......................................... 93 A. Lying Versus Deception: Which is Worse? . 93 B. What the Law Says About Deceit .. .......... 94 IV. BULLSHIT ........................................ 98 A. A Brief Note on President Trump .. .......... 98 B. How the Law Reacts to Bullshit.. .......... 101 1. FederalPleadings ................. 101 2. Expanded Definition of Fraud ............. 103 V. CONCLUSION .......................................104 I. INTRODUCTION Gerald Shargel, a prominent criminal attorney in New York, has written, "A trial may be a search for the truth, but I - as a defense attorney - am not part of the search party."' This essay asks who is a member of the search party, and by what tactics parties and lawyers impede a successful search for the truth, both in the court- room and in the interactions among people that set the stage for judicial intervention. In this effort, the essay distinguishes among three kinds of dishonesty: lies, deceit, and bullshit. The federal perjury statute criminalizes an assertion of a mate- rial fact that the speaker believes to be false but which is asserted * Don Forchelli Professor of Law and Director, Center for the Study of Law, Language and Cognition, Brooklyn Law School. The author expresses his gratitude to Laurence Horn and Jason Stanley for valuable insights into these issues, and to the participants in the Du- quesne symposium, of which this article is a part. 1. Gerald L. Shargel, Federal Evidence Rule 608(b): Gateway to the Minefield of Witness Preparation,76 FORDHAM L. REV. 1263 (2007). 73 74 Duquesne Law Review Vol. 56 as true.2 Once one has taken an oath to tell the truth, it is a crime for that person to "willfully and contrary to such oath state[ ] or subscribe[ ] any material matter which he does not believe to be true."3 The law purports to disapprove of lying. By and large it does, but not always. For example, the legal system gives law en- forcement officers license to lie both during the interrogation of wit- nesses and during sting operations and subsequently permits pros- ecutors to take advantage of these lies. 4 The prosecutors them- selves may not lie, however. Moreover, there is well-studied toler- ance by judges of police officers lying about the circumstances under which they seized evidence or interrogated a suspect.5 Apart from such selective tolerance, conceptual questions about lies arise from time to time. May a witness who intended to lie be saved from a perjury conviction if the testimony turns out to be true by some kind of fluke? For example, what if the witness was mis- taken about the facts and what he intended as a lie was really true? Another issue is whether the witness must intend that the false statement be believed. In the film Casablanca,Humphrey Bogart's character, Rick, is asked his nationality and answers, "I'm a drunk- ard." 6 Whether that was a lie or not depends upon whether an in- tention to deceive is part of the definition of lying. In civil litigation, a plaintiff who claims to have been damaged by having relied on a false statement must demonstrate that the reliance was reasona- ble. Whether perjury requires that the speaker could reasonably expect to be believed is not well-established in the case law, sug- gesting that there are few, if any, prosecutions that raise the issue. While lying is about both false testimony and the state of mind of the speaker, deceit is more about the state of mind of the infor- mation's recipient. A speaker has deceived another when the speaker has led the hearer to come to believe something to be true that the speaker believes to be false. It makes no difference whether the speaker did this by means of making false assertations of fact or by uttering half-truths or by other means of persuasion. Speech act theorists refer to a hearer-oriented element of an act of speech as the perlocutionaryeffect of the utterance-the effect it has on the state of mind of the hearer, rather than the communicative 2. 18 U.S.C. § 1621 (2016). 3. Id. (emphasis added). 4. For discussion, see Stuart Green, Lying in Law, in OXFORD HANDBOOK OF LYING (Jorg Meubauer, ed.) (forthcoming) (manuscript at 11-12). 5. Christopher Slobogin, Testilying: Police Perjuryand What to Do About It, 67 U. COLO. L. REV. 1037 (1996). 6. Mjcgonzales, Are My Eyes Really Brown?, YOUTUBE (June 5, 2009), https://www.youtube.com/watch?v=ZkM6HegRk3A. Summer 2018 Lies, Deceit, and Bullshit 75 intent of the speaker.7 Verbs vary as to their focus in this regard. "Persuade," for example, holds when the perlocutionary effect of an assertion is to convince the hearer of a proposition. As for "bullshit," I intend that word to be understood as described by Harry Frankfurt, in his 2005 book On Bullshit.8 Frankfurt paints the bullshitter as an amoral person, not concerned about whether what he says is true or false. Thus, the bullshitter is not a liar because the liar must say something he believes is false, and the bullshitter does not bother himself with such concerns. Whether the bullshitter engages in deceit is a different matter. The bullshitter may be concerned with the perlocutionary effect of his or her statements but not with whether the statement is intended to convince the hearer of something true or false. As Frankfurt puts it: The fact about himself that the bullshitter hides . is that the truth-values of his statements are of no central interest to him; what we are not to understand is that his intention is neither to report the truth nor to conceal it.... It is impossible for someone to lie unless he thinks he knows the truth. Producing bullshit requires no such conviction. 9 In a number of circumstances, the law declares bullshit as unac- ceptable, recognizing that it would not be covered by the ordinary definitions of deceit or lying. Illustrations include Rule 11 of the Federal Rules of Civil Procedure, which requires that an attorney (or party) make adequate investigation of the facts underlying a submission to a federal court or be subject to monetary or other sanctions.10 Of course, lawyers do sometimes intentionally include false allegations in a legal pleading. More often, however, a lawyer may simply intend to fill in the gaps in a narrative in which a num- ber of the assertions required for the lawyer to succeed can be proven, but not all such assertions. When a lawyer takes liberties with these remaining facts, the lawyer is engaged in bullshitting. The same holds true for fraud under a number of common law and statutory definitions. Asserting something as true without finding out whether it is true or not is considered fraudulent behavior. The remainder of this essay explores the themes raised in this introduction with examples from legal proceedings, from business 7. J.L. AUSTIN, HOW To Do THINGS WITH WORDS 101 (1962). 8. HARRY G. FRANKFURT, ON BULLSHIT (2005). 9. FRANKFURT, supra note 8, at 55. 10. FED. R. CIV. P. 11. 76 Duquesne Law Review Vol. 56 transactions (real and hypothetical) that may become the subject of such proceedings, and from political discourse. II. LYING Lying is outlawed in one context after another. Lying under oath is perjury." Lying to a government official is a federal crime. 12 Ly- ing in a business transaction is a species of fraud if the party lied to reasonably relies on the lie to his or her detriment. 13 Lawyers may not lie in the course of representing a client.14 Nor may they ar- range to have a non-lawyer employee lie as their agent.15 A. What is a Lie? Linguist/philosopher Laurence Horn sets forth four criteria that have been proposed in defining what constitutes a lie: (C1) S says/asserts that p (C2) S believes that p is false (C3) p is false (C4) S intends to deceive H16 There is general agreement that a lie must be an assertion of some kind. An opinion, a question, a promise and other such speech acts do not have truth value and therefore cannot be false.17 Phi- losopher Don Fallis elaborates: "I think that you assert something when (a) you say something and (b) you believe that you are in a situation where you should not say things that you believe to be 11. 18 U.S.C. § 1621 (2016). 12. 18 U.S.C. § 1001 (2016). 13. A classic example is Rule 10b-5 of the Securities and Exchange Commission, which defines securities fraud. 17 C.F.R. § 240.10b-5 (2018). It is fraudulent conduct "[t]o make any untrue statement of a material fact" in a securities transaction. While lying is sufficient to constitute fraud, it is not a necessary condition, in that the rule also outlaws other types of deceptive practice. See infra note 80 for further discussion of this rule. 14. See, e.g., N.Y. RULES OFPROF'L CONDUCT r. 4.1 (2017) ("In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third per- son."). 15. See, e.g., N.Y. RULES OF PROF'L CONDUCT, r.
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